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United States v. Altizer

United States District Court, W.D. Virginia, Roanoke Division

September 3, 2019

UNITED STATES OF AMERICA,
v.
TRAVIS DUSTIN ALTIZER, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou United States Magistrate Judge

         In accordance with the provisions of 28 U.S.C. § 636(b)(3), and upon the Defendant's informed and written consent, this case was referred to me for the purpose of conducting a plea hearing.

         The Government charged the Defendant in a one-count Superseding Indictment charging that, on or about February 25, 2019, the Defendant, having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm, that being a Smith & Wesson, model M&P Bodyguard, .380 pistol, and such firearm was shipped and transported in interstate commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). These events were charged as occurring within the Western District of Virginia.

         The plea hearing was conducted before me on August 26, 2019. The Defendant was at all times present in person and with his counsel, Andrea Harris. The United States was represented by Rachel Barish Swartz, Assistant United States Attorney. The proceedings were recorded by FTR. See Fed. R. Crim. P. 11(g).

         With the Defendant's informed and written consent, I made a Rule 11 inquiry; the Government presented an oral proffer of evidence for the purpose of establishing an independent basis for the Defendant's plea; and the Defendant entered a plea of guilty to the offense charged in Count One of the First Superseding Indictment.

         DEFENDANT'S RESPONSES TO RULE 11 INQUIRIES

         The Defendant was placed under oath and addressed personally in open court. He expressly acknowledged that he was obligated to testify truthfully in all respects under penalty of perjury and that he understood the Government's right, in a prosecution for perjury or false statement, to use any statement that he gives under oath against him. See Rule 11(b)(1)(A).

         The Defendant testified to the following personal facts: his name is Travis Dustin Altizer. He is 35 years of age, and he received his GED. He is a citizen of the United States, and is able to read, write, and understand English without difficulty. He attended the Bureau of Prison's Residential Drug Abuse Program (“RDAP”) in 2011, and has no medical condition, either physical or mental, which might interfere with his ability to understand and to participate fully in the proceeding. He stated that he was using no alcoholic beverage, medication, or drugs which might impair his ability to participate fully in the proceeding and that his mind was clear. He stated that he understood he was in court for the purpose of entering a plea of guilty to a felony offense, which he could not later withdraw. Upon inquiry, the Defendant's attorney represented that she had no reservations about the Defendant's competency to enter a plea of guilty to the felony offense charged in Count One of the First Superseding Indictment.

         The Defendant acknowledged that he had received a copy of the First Superseding Indictment; it had been fully explained to him; he had discussed the charge with his attorney; and he had been given enough time to do so. He stated that he understood the nature of the charge against him in the First Superseding Indictment and specifically understood that it charged a felony offense. See Rule 11(b)(1)(G). He stated that his decision to enter a plea of guilty to Count One of the First Superseding Indictment had been made after consulting with his attorney. He stated he was fully satisfied with the services of his attorney, and it was his intention and desire to enter a guilty plea to the felony offense described in the First Superseding Indictment.

         The Defendant confirmed that he fully recognized and understood his right to have the Rule 11 hearing conducted by a United States District Judge, and he gave his verbal and written consent to proceed with the hearing before me. The Defendant's written consent was filed and made a part of the record.

         Counsel for the parties previously informed the Court that the Defendant's proposed plea of guilty was to be made pursuant to a written plea agreement. See Rule 11(c)(2). Counsel for the Government set forth the Government's understanding of the plea agreement in some detail, including: the agreement for the Defendant to plead guilty to possessing a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year (Count One) [¶ A.1]; the Defendant's express acknowledgment of the maximum sentence for the offense [¶ A.1]; the Government's agreement to recommend a sentence imposed concurrently with Defendant's sentence imposed in state court [¶ B.2]; the Defendant's admission of his factual guilt to Count One of the First Superseding Indictment and his stipulation that there is a sufficient factual basis to support each and every material allegation underlying the charge to which he was proposing to plead guilty [¶¶ A.1, E.5]; the Defendant's express acknowledgment of the trial rights waived by entry of a voluntary plea of guilty [¶ A.2]; the agreement's provision outlining the fact that sentencing is within the sole discretion of the Court, “subject to its consideration of the United States Sentencing Guidelines” and the factors set forth in 18 U.S.C. § 3553(a) [¶ B.1]; the Defendant's express recognition that he would not be allowed to withdraw his guilty plea irrespective of the sentence imposed by the Court [¶ B.1]; the Defendant's stipulation that all matters pertaining to Count One of the First Superseding Indictment are relevant sentencing conduct [¶ B.2]; the terms of the acceptance of the responsibility provision [¶ B.2]; the scope of the Defendant's express waiver of his right of direct appeal [¶ C.1]; the scope of the Defendant's express waiver of his right to make any collateral attack on any judgment or sentence imposed by the Court [¶ C.2]; the Defendant's acknowledgment that he had been effectively represented in this case [¶ E.3]; the parties' express acknowledgment that the written plea agreement constituted the entire understanding between the parties [¶ E.5]; and the substance of the agreement's other terms and provisions. See Rule 11(b)(1)(B)-(N) and 11(c)(1)-(3).

         The Defendant was asked what his understanding of the terms of the agreement was, and he testified that his understanding was precisely the same as that set forth by the Government's attorney. He further represented that he had reviewed the agreement, initialed each page and signed page 13. Counsel for the Defendant, likewise, represented that her understanding was the same and she stated that she was satisfied that the Defendant understood all of its terms. The Defendant was shown the plea agreement, and he affirmed it to be his signature on the document. He further testified that no one had made any other, different, or additional promise or assurance of any kind in an effort to induce him to enter a plea of guilty and that no one had attempted in any way to force him to plead guilty in this case. See Rule 11(b)(2). The agreement was then received, filed, and made a part of the record. The Defendant acknowledged that he knew his plea, if accepted, would result in his being adjudged guilty of a felony offense.

         After the range of punishments for the offenses charged in Count One of the First Superseding Indictment had been outlined to the Defendant, he acknowledged that he understood the maximum penalties provided by law for conviction of Count One to be confinement in a federal penitentiary for ten (10) years, a $250, 000 fine, and a term of supervised release of three (3) years. See Rule 11(b)(1)(H). He acknowledged that he also understood that, if the Court determines he has at least three prior convictions for serious drug offenses and/or violent felonies, he will face a mandatory minimum sentence of imprisonment for a term of fifteen (15) years and a maximum sentence of imprisonment for life, and a term of supervised release of five (5) years. See Rule 11(b)(1)(I). In addition, the Defendant acknowledged that he understood that he would be required to pay a mandatory $100.00 special assessment as to Count One. See Rule 11(b)(1)(L).

         The Defendant was informed, and he expressly acknowledged, that the Court's determination of his sentence would include consideration of multiple factors, including: the nature and circumstances of the offense; the Defendant's history and characteristics; the seriousness of the offense; the need to promote respect for the law; the need to provide for just punishment and afford adequate deterrence; the need to protect the public; any determined need to provide the Defendant with educational or vocational training, medical care, or other correctional treatment in the most efficient manner; the kinds of available sentences; the pertinent sentencing ...


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